As a firm we have offered assistance to Transgender prisoners within the prison estate. As per statistics issued by the Ministry of Justice on 9th November 2016 there were 70 prisoners within the prison estate who identified as Transgender.
On this date a new Prison Service Instruction was issued. The aim of PSI 17/2016 “The Care and Management of Transgender Offenders” was to offer more guidance to staff in Prisons and in the community who will be in contact with Transgender prisoners.
The PIS was issued to replace PSI 07/2011 “The Care and Management of Transsexual Prisoners”, published back in 2011. Within the old guidance the term transsexual is used. This term is not considered appropriate due to its reference to sex and anatomy. NOMS have identified that they should have a policy which includes individuals who have a more fluid or neutral approach to their gender identify. This ultimately means that if someone identifies as transgender but does not have a Gender Recognition Certificate they may still be able to transfer to a more suited establishment.
What is a PSI?
PSI is short for Prison Service Instructions. It is a set of rules, regulations and guidelines by which prisons are run. They will include a fixed expiry date and should be updated.
Why is this PSI important?
There was research conducted by several universities who found that almost 50% of young transgender people have attempted suicide.
Many transgender people still face discrimination and mistreatment within the prison system. This PSI raises a lot of issues that have previously been overlooked. It is a big step for transgender prisoners and provides clear guidance for all staff that work with prisoners. Within this article we will set out the main points that this PSI covers including the rules and regulations that each prison must abide by.
What is Transgender?
In accordance with the PSI transgender is;
A Broad, inclusive term referring to anyone whose personal experience of gender extends beyond the typical experiences of those of their assigned sex. Amongst others, transsexual people, non-binary people and cross-dressers may all consider themselves transgender people”
In simple terms it is, but not limited to, someone who identifies as a gender that is the opposite to their birth sex. This can also refer to an individual who identifies as gender neutral.
An Individual that wishes to identify as transgender, to be recognised in law, would need to obtain a Gender Recognition Certificate however, NOMS will recognised individuals that have expressed a consistent desire to live permanently in the gender they identify with.
What does the PSI cover?
Within the PSI there are paragraphs written in italics and these are mandatory actions. this means that staff must comply with these rules, some of which are detailed below.
When a prisoner is detained in a prison, staff should determine a prisoner’s legal gender at the first opportunity. Should they feel there are any issues in determining a person’s gender they should consult with Equality Leads. Staff are not allowed to ask to see a Gender Recognition Certificate but can ask to see a birth certificate. If the prisoner does produce a Gender Recognition Certificate they must be treated as the gender on the certificate.
When seeking to locate to a prison which does not reflect their legal gender, a local Transgender Case Board should sit to decide on location. This is done at the time of the pre-sentence report, or within three working days of reception in custody. There can be exceptions, including situations where it is felt that the risk posed by locating a prisoner within the female estate prevents such allocation.
Prisoners who have not obtained a Gender Recognition Certificate must be allowed to express which part of the prison estate reflects their gender. This does not mean that they will be transferred there but it must be recorded. However, prisoners who have obtained legally affirmed or acquired gender must be located in the prison estate consistent with their gender.
Whilst not all transgender prisoners will have a Gender Recognition Certificate it is stated that staff must communicate with transgender prisoners in a way that respects the gender they identify with.
All prisons should address transgender prisoners by the gender they identify with including if they wish to be addressed by neutral gender, this may include not including a title. They must also be allowed to adopt a gender appropriate or gender-neutral name.
Prisons should, where possible, facilitate prisoners to express their gender identity. Each prison will have its own policies on clothing but they are required to give access to clothing and items that will be suited to their gender subject to any risk, security or operational assessments. The dress code that each prison will have will also take into account decency and vulnerability of a prison. For example, some prisons may not deem it appropriate to wear skirts or dresses.
Whilst the PSI mainly focuses on prison staff it also provides guidance for staff who work within the National Probation Service. This can include those involved in pre-sentence report preparation, pre-release planning, residence in an Approved Premises, voluntary agreements with Approved Premises, healthcare, gender dysphoria pathway, gender reassignment pathway, interventions and contingency planning for recall or breach of sentences resulting in a custodial sentence.
The Policy is clear that the above guidance are mandatory actions and must be followed. It is important that transgender prisoners are treated as equal to all other prisoners. The above mandatory actions are a snapshot of what is included and the guidance goes beyond the brief number of examples given in this article.
What to do if you feel staff are not following the rules and regulations set out within the PSI?
Should you find yourself in a situation where staff are not following the guidance set out within the PSI or you do not agree with any aspects of the care and management you should follow the internal complaints procedure.
To submit a complaint, you would need to firstly complete a COMP1 form. You should receive a response within 5 working days. If it is not possible for the Prison to answer the complaint completely they should acknowledge it. Should you feel you have not received a satisfactory response you should complete a COMP1A form.
How can we help?
Not only is it important for staff dealing with transgender prisoners to understand their obligations under the PSI, it is also important that transgender prisoners understand their rights and entitlements. We can offer expert advice to transgender prisoners in custody to ensure that their rights are upheld when serving in custody or upon release on licence.
Should you require any assistance with a Prison Law issue please contact our Prison Law department at Hine Solicitors on 01865 518971 or FREEPOST – RTHU – LEKE – HAZR Hine Solicitors, Seymour House, 285 Banbury Road, Oxford OX2 7JF for our Oxford office or FREEPOST – TRXS-TYCU-ZKHY Hine Solicitors, Crown House, 123 Hagley Road, Birmingham B16 8LD for our Birmingham Office.